The opinion
1
2
3
4 UNITED STATES DISTRICT COURT
5 NORTHERN DISTRICT OF CALIFORNIA
6
7 GREGORY BROWN, Case No. 25-cv-06667-WHO (PR)
Plaintiff,
8 ORDER DENYING MOTION TO
PROCEED IN FORMA PAUPERIS
v.
9 ON APPEAL;
10 CITY AND COUNTY OF SAN ORDER DENYING MOTION FOR
FRANCISCO, et al., THE APPOINTMENT OF
11 COUNSEL
Defendants.
12 Dkt. No. 9
13
INTRODUCTION
14
Plaintiff Gregory Brown’s motion to proceed in forma pauperis (IFP) on appeal is
15
DENIED because he has not filed an IFP application. He may apply to the Ninth Circuit
16
Court of Appeals for permission to proceed IFP. His motion for counsel on appeal is
17
DENIED because he has not shown that there are extraordinary circumstances justifying
18
the appointment.
19
BACKGOUND
20
Brown has appealed my dismissal of his 42 U.S.C. § 1983 action.1 (Notice of
21
Appeal, Dkt. No. 10.) In his district court action, Brown alleged that various state officers
22
and employees violated his federal constitutional rights in securing his criminal
23
24
1 In his motion, Brown contends that I lacked the authority to dismiss his complaint sua
sponte, without serving it and without allowing defendants to respond, and without
25
allowing him a chance to respond prior to dismissal. (Dkt. No. 9 at 3.) He believes that I
lacked the authority because he was not proceeding IFP — he had paid the filing fee
26
instead of filing an IFP application — and his complaint was not subject to IFP screening
under 28 U.S.C. § 1915. I had authority under another statute, 28 U.S.C. § 1915A, which
27
directs district courts to screen any complaint in which “a prisoner seeks redress from a
1 convictions and challenging his resentencing petitions. (Order of Dismissal, Dkt. No. 7 at
2 1.) I dismissed the complaint under Heck v. Humphrey, 512 U.S. 477 (1994), because
3 success on such claims would appear to invalidate a conviction that has not already been
4 reversed on direct appeal, expunged by executive order, declared invalid by a state tribunal
5 authorized to make such determination, or called into question by a federal court’s
6 issuance of a writ of habeas corpus. (Id.)
7 In the district court action, Brown paid the filing fee instead of applying to proceed
8 IFP, though he had been sent an IFP application and was given additional time to submit it.
9 (Dkt. Nos. 5 and 6.)
10 DISCUSSION
11 i. Motion to Proceed IFP on Appeal
12 Brown’s application to proceed IFP is DENIED because he has not submitted an
13 IFP application, and there is no prior one on file because he paid the filing fee instead of
14 submitting an application. (Dkt. No. 9.) He may apply to the Ninth Circuit Court of
15 Appeals for permission to proceed IFP.
16 ii. Motion for the Appointment of Counsel on Appeal
17 The decision to request counsel to represent an indigent litigant under 28 U.S.C. §
18 1915 is within “the sound discretion of the trial court and is granted only in exceptional
19 circumstances.” Franklin v. Murphy, 745 F.2d 1221, 1236 (9th Cir. 1984). A finding of
20 “exceptional circumstances” requires an evaluation of the likelihood of the plaintiff’s
21 success on the merits and an evaluation of the plaintiff’s ability to articulate his claims pro
22 se in light of the complexity of the legal issues involved. See Agyeman v. Corrections
23 Corp. of America, 390 F.3d 1101, 1103 (9th Cir. 2004). Neither the need for discovery,
24 nor the fact that the pro se litigant would be better served with the assistance of counsel,
25 necessarily qualify the issues involved as complex. See Rand v. Rowland, 113 F.3d 1520,
26 1525 (9th Cir. 1997).
27 There is no doubt that not having a lawyer puts a party at a disadvantage in our
1 || filed nearly 8000 cases, roughly 16.25% of all new civil filings. United States Courts for
2 || the Ninth Circuit, 2024 Annual Report, https://cdn.ca9.uscourts.gov/datastore/judicial-
3 || council/publications/AnnualReport2024.pdf. The high percentage of civil litigants who
4 || cannot afford counsel threatens our ability to dispense equal justice to rich and poor alike,
5 || as the judicial oath demands. That said, I am compelled to follow controlling precedent
6 || and determine if “exceptional circumstances” exist to appoint counsel in the cases before
7 || me.
8 Brown has not shown that exceptional circumstances exist. His filings are clear, the
9 || suit does not present complex legal issues, and he has prosecuted his suit ably.
10 || Accordingly, the motion for the appointment of counsel is DENIED. Brown can ask the
11 || Ninth Circuit Court of Appeals to appoint counsel.
CONCLUSION
E 13 Brown’s motion to proceed in forma pauperis (IFP) on appeal is DENIED because
S 14 || he has not filed an IFP application. (Dkt. No. 9.) He may apply to the Ninth Circuit Court
15 || of Appeals for permission to proceed IFP. His motion for counsel on appeal is DENIED
16 || because he has not shown that there are extraordinary circumstances justifying the
17 || appointment. He may ask the Ninth Circuit Court of Appeals to appoint counsel.
18 The Clerk shall terminate all pending motions, and send a copy of this Order to the
19 || Ninth Circuit Court of Appeals.
20 IT IS SO ORDERED.
21 || Dated: February 6, 2026 YVQe
22 □
IAM H. ORRICK
23 United States District Judge
24
25
26
27
28